Putting Judicial Power In Its Place

Assertions of judicial power and controversies about its proper exercise are nothing new. Still, constitutional law and practice are not static and the scope of judicial power in any particular jurisdiction may wax or wane over time. The common law world has long shared a particular tradition of adjudication and legislation, although a tradition that has splintered, not least into distinct British and American models of constitutional government. In many of the jurisdictions that cluster around the former, including the United Kingdom itself, the relative power of courts appears to have been expanding. The latest issue of the University of Queensland Law Journal, entitled “Reflections on the Rise of Judicial Power”, considers this (apparent) phenomenon in various common law jurisdictions, asking why, whether and to what extent judicial power is on the march – and what to think about it.

We are grateful to Professor James Allan (University of Queensland) for entrusting us with responsibility for editing the special issue. Many of the themes explored across the special issue are also ones that Policy Exchange’s Judicial Power Project has addressed–and, indeed, the Project’s work is considered in a number of the essays in the special issue. The special issue is not the work of the Project, but we are delighted to be able to make it available on the Project’s website, beginning with our own essay entitled “Putting Judicial Power in its Place”.

It is no secret that we are sceptical about the expansion of judicial power, that we take it to put in doubt the balance of the Westminster constitution. The other contributors to this special issue, who work in Australia, Canada, Ireland, and the United Kingdom, are not united behind this, or any other, thesis. Some share our concerns; others do not. Some have written for the Judicial Power Project in the past, others are public critics of its work, and some have written for and are critical of it at least in part – none (apart from us) are responsible for it as a whole.

The issue opens with Grégoire Webber’s article on the idea of judicial responsibility, which proceeds partly in conversation with John Finnis, a leading student of the common law constitutional tradition and frequent contributor to the Judicial Power Project. The next three articles consider: how and why Australia has largely contained the risk of over-mighty courts (Nicholas Aroney and Benjamin B. Saunders), how and why Canadian courts are increasingly undisciplined in some of their private law reasoning (Dwight Newman), and, in the Irish context, the risks that excessive judicial restraint may pose to constitutional government (Maria Cahill and Seán ó Conaill).

The remaining articles focus on (or on developments in EU law highly relevant to) the United Kingdom, in which much constitutional change has taken place and much controversy too. Mark Elliott, Britain’s leading public law commentator, considers some fractures in recent constitutional law adjudication, including the high-profile Miller Brexit litigation. Judicial power in the context of the territorial constitution, and devolution to Scotland in particular, is the focus of the next article by Aileen McHarg, Chris McCorkindale and Paul Scott, with the article that follows by Gavin Phillipson returning to Miller and exploring its connections to legal and political constitutionalism. Gunnar Beck’s article examines critically the work of the Court of Justice of the EU, which is not a common law court but has been and remains vitally important in the United Kingdom. The penultimate article, by Paul Craig, is a forceful critique of the Judicial Power Project, to which our own article replies in part, while recalling the virtues of the common law tradition, tracing the reasons for its qualification, and charting a path for its restoration. You can find a copy of our essay by clicking here.